Biden’s Abusive Title IX Rewrite

National Review Online

Thursday, September 22, 2022

 

In June, Education Secretary Miguel Cardona proposed rewriting Title IX to better reflect fashions in progressive ideology. Owing to the foresight of his predecessor, Betsy DeVos, the department was required to open a two-month window for public comment. That period closed late last week after over 200,000 comments. Many of the comments expressed alarm — warranted alarm.

 

First, in the new regulations, the department seeks to “define sex-based harassment.” This is an expansion of the Supreme Court’s narrow definition of discriminatory sexual harassment — that which is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” — to apply to all “unwelcome sex-based conduct.” The Court set a high bar, but the department’s new definition would cover everything from offensive jokes to refusing to use a student’s preferred pronouns.

 

Second, the department would “clarify obligations related to grievance procedures.” This involves gutting Title IX of its due-process protections: removing the requirement for cross-examination and the need to make accused students aware of the evidence against them; and reinstating Obama’s notorious “single-investigator model,” where a lone administrator plays detective, jury, and judge, all without a formal hearing.

 

Third, as concerns women and girls — the very people Title IX was designed to help — the new regulations would “articulate the Department’s understanding that sex discrimination includes discrimination on the basis of gender identity.” Redefining sex to include gender identity would eradicate female-only sports and spaces in every federally funded school, kindergarten through college. Countless young women and girls would lose out on opportunities, scholarships, and even their basic rights to privacy and safety.

 

Fourth, in keeping with a deeply sinister progressive trend, the department would demand that schools “respond to a hostile environment based on sex” even if the conduct in question occurs “outside [a school’s] education program or activity.” This means that parents who refuse to green-light their child’s gender transition could be investigated for discrimination as well as kept in the dark about their child’s transgender status at school.

 

All this without constitutional authority. It is the role of Congress, not the administrative state, to enact legislation. In justifying its overreach, the department mendaciously appeals to Bostock v. Clayton County. But the Court’s decision in that case is explicitly limited to Title VII and, in any case, does not redefine sex. On the contrary, Justice Gorsuch clarified in the majority opinion that “sex” refers “only to biological distinctions between male and female.”

 

Unfortunately, this is the sort of executive abuse we’ve come to expect from Democratic administrations. In 2016, after the Obama Education and Justice Departments’ instruction to public schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” the feminist organization the Women’s Liberation Front (WoLF) sued on the grounds that this legislative rule violated the Administrative Procedure Act. WoLF rightly argued that the changes marked an “arbitrary and capricious” legislative rule, done “in excess of statutory authority and limitations.” The same is true of the new regulations.

 

It’s bad enough that the new regulations conflict with free speech, parental rights, biological reality, and women’s rights. But that they do so in flagrant contradiction of democratically decided state and federal laws and policies makes them even more egregious. Eighteen states and counting now have laws protecting women’s sports. Some states, such as Florida, have passed bills protecting parental rights in education. Yesterday, we commended Governor Glenn Youngkin for renewing Virginia’s commitment to transparency in schools.

 

The Biden administration is trying to create a “living Title IX” very much like the “living Constitution,” one whose meaning changes to subvert its original meaning. It should be firmly resisted.